Downstream of Scarcity
DOWNSTREAM OF SCARCITY: In a place like the Pacific Northwest, access to water isn’t generally a problem. Until it is a problem. Then it is a very big problem.
The laws that help us make sense of water access are enormously complicated, but they boil down into a few basic concepts. Paramount among these, a water right is subordinate to a senior water right and cannot impair that senior right. A senior right must be fully satisfied before the rights of a subordinate claim can kick in.
First in time means first in right; yet, as the West has developed, junior claims are far more numerous than senior rights.
A second key concept is that of beneficial use, a broad category that covers essentially any conceivable use that might pull water from stream or ground. Far less attention has been paid to the benefit that arrives from leaving water in stream or ground; there simply has not been, historically, a strong advocacy—an assertion of rights—for a non-transformative, non-consumptive use of water.
In Whatcom County, the most numerous and junior of water claims are held by hundreds of private wells and dozens of independent water associations. For decades the state was heedless in permitting these because water use is considered beneficial and, as we noted, water is abundant. Until it isn’t.
Senior rights are held, largely, by municipal authorities long incorporated under state law. The most senior right is held by the tribes, by 1855 treaty with the federal government under rules governed by the Constitution, rights that predate the formation of Whatcom County and Washington State. Indeed, these treaties stipulate that aboriginal rights to water predate even the United States, and exist from time immemorial.
The tribes assert their claims to plenary Federal authority, and must be fully satisfied. The cities assert their claims to the state, and must be fully satisfied. Farther downstream are thousands of junior claims that are, to be blunt, oversubscribed. Farthest downstream of all are all the millions of residents who call our emptied stream and river beds home and table, the fish.
For more than six decades, the state has recognized the pressures competitive uses place on natural water systems, and in 1971 passed legislation that clarified instream flows as a beneficial water use. The state Dept. of Ecology manages most water rights and claims, except when those rights and claims are federal in nature. Therefore, a beneficiary of a federal reserved water right may not seek relief from the state when a junior water user impairs a federally reserved water right.
In June, 2011, after a decade of attempting to resolve water supply issues in partnership with local authorities and stakeholders while at the same time watching fish stocks plummet in regional waterways, Lummi Nation petitioned the United States government to enforce the 1855 treaty in order to measure and protect Lummi Nation’s most senior water right for instream flows.
Needless to say, Lummi’s petition for enforcement of their most senior right electrified other water claimants and stakeholders, long dormant after earlier collaborative efforts to quantify and qualify water use had stagnated and stalled. Those earlier efforts were organized under the Water Resource Inventory Area 1 (WRIA1), an effort enacted by the Legislature to require local governments statewide to audit their water inventories as a precursor to help settle water claims.
The essential merits of Lummi’s claim were greatly strengthened earlier this year by a U.S. District Court ruling that found state infrastructure, such as culverts, had created barriers to fish passage, harming Native American tribal fishing rights. Following on United States v. Washington, the landmark 1974 Boldt decision that affirmed treaty fishing rights, federal district court Judge Ricardo Martinez reasoned that those rights are impaired unless accompanied by gains in habitat, particularly spawning grounds. The state appealed the Martinez order last week, fearing the requirement to remove hundreds of state-highway culverts over the next 17 years was beyond the state’s financial capacity; however, the implications for Whatcom policymakers and planners is clear.
It’s important to note that Lummi Nation did not have to sit in on those WRIA1-related meetings. Lummi Nation did sit in on those meetings as they dragged on for more than a decade.
The tribe has asserted it has no interest or claim to how water is managed or distributed that is not part of the Lummi share.
Like so much about planning in Whatcom County, there was enormous evidence- and consensus-building among technical members of the WRIA1 planning unit. Science and law were well understood by these participants. Their work simply never translated into policy or enforcement, gummed up and derailed by the usual assortment of land speculators and snarling political extremists.
The snarls turned to hard swallows last week as Whatcom County attempted to scope the lessons of that earlier, comatose WRIA1 effort by holding a Water Supply Symposium in association with the Whatcom Watersheds Information Network (WWIN) and Whatcom Farm Friends. The latter, in particular, supports and serves as a voice for farmers and agricultural interests, who—squeezed on one side by powerful senior water claims and on the other by thousands of groundwater withdrawals resulting from the buildout of the county’s rural lands—stand to benefit by having their own claims and uses recognized and protected.
Whatcom’s water woes are solvable, symposium attendees learned. Abundance offers opportunities scarcity does not. But the county’s terrible land-use policies have cascaded into serious water-use problems, as policymakers have refused to acknowledge the interconnectedness of each.
The tribes may force some urgency, some wisdom on us, and for that we should bless them.
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